Secretary of State Bridget Phillipson has delivered a statement to Parliament on her regulatory approach to higher education – specifically, the future of the Higher Education (Freedom of Speech) Act.
Ahead of her day in court with the Free Speech Union – which is taking her to court over her implementation pause – she announced that key provisions will be brought into force, whilst “burdensome provisions” will be scrapped.
And the good news is that pretty much for the first time from a minister on this issue, there’s an explicit recognition of the fine lines, complexities and contradictions often in play on the issue. A press notice covers largely the same material.
You’ll recall that on taking office back in July, Phillipson paused further commencement of the Act in response to “concerns raised by a cross section of voices” – and controversially, at least for some, a “source” branded the Act as passed a “Tory hate charter”.
In the intro, Phillipson said she was still committed to ensuring the protection of academic freedom and free speech – “vital pillars” of the university system:
Universities are spaces for debate, exploration, and the exchange of ideas, not for shutting down dissenting views… extensive engagement with academics, universities, students, and minority groups revealed concerns about unworkable duties, legal system burdens, and potential impacts on safety, particularly amid rising antisemitism on campuses.
Insights from her work to consult with interested stakeholders (both for and against the act), says Phillipson, have shaped a “balanced, effective, and proportionate approach” to safeguard free speech while addressing minority welfare.
What stays
First up, the government will commence the following requirements currently in the act (in sections 1,2 and 6):
- The duties on higher education providers to take reasonably practicable steps to secure and promote freedom of speech within the law
- The duty on higher education providers to put in place a code of conduct [practice] on freedom of speech
Those are relatively uncontroversial – most providers were preparing in that spirit already, although the (very) detailed suggestions on compliance previously proposed by OfS may yet change.
Underpinning that, Phillipson also intends to commence the duties on the Office for Students (OfS) (section 5) to promote freedom of speech and the power to give advice and share best practice. And unsurprisingly, the ban on non-disclosure agreements for staff and students making complaints about bullying, harassment and sexual misconduct will also remain.
There was a curious passage on the Director for Free Speech and Academic Freedom role – the Secretary of State said that she had “complete confidence” in Arif Ahmed who will be staying on – but then criticised how he’d been appointed, drawing on interim Chair David Behan’s review of the regulator that had recommended a look at how all OfS executive and board appointments should be made.
She said will decide on the process of appointing directors to the independent regulator “shortly”.
What’s going
A couple of other measures were “not proportionate or necessary”, so she’ll be seeking repeal.
The duties on students’ unions are to go – because they’re neither “equipped nor funded” to navigate such a complex regulatory environment, and are already regulated by the Charity Commission:
But I fully expect students unions to protect lawful free speech, whether they agree with the views expressed or not, and expect providers to work closely with them to make sure that happens, to act decisively to make sure their students union complies with their free speech code of conduct.
That effectively returns us to the Education Act 1986 position – of providers taking reasonably practicable steps to get their SU to comply – and sensibly removes the prospect of a new student being told about two codes of practice to follow depending on who they’d booked a room with.
Most controversially for some, she will also repeal the legal tort, on the basis that it would have resulted in:
Costly litigation that risks diverting resources away from students at a time when University finances are already strained – remaining routes of redress have plenty of teeth.
Those pro the tort worry that that only leaves OfS’ powers to find as the compliance lever – although others worried that the threat of it would have resulted in more threatening letters than sensible, nuanced decisions.
What’s changing
On the OfS free speech complaints scheme, it will remain in place for university staff and visiting speakers – but there will be two changes. OfS will first be freed up to prioritise the more serious complaints – and be officially empowered to ignore others.
And the government will remove the “confusing duplication” of complaint schemes for students. Students will be diverted to using the Office of the Independent Adjudicator (OIA, and OfS will take complaints from staff, external speakers and university members.
That doesn’t quite remove the potential duplication of the two bodies considering the same incident or issue from different angles/complaints – but it’s a sensible start.
And the government will also amend the mandatory condition of registration on providers to give OfS flexibility in how they apply those conditions to different types of providers – we’d expect that to cover issues like the obvious oversight of 14-year olds in FE colleges caught by the Act suddenly gaining free speech rights.
The government says it will also take more time to consider implementation of the overseas funding measures in the act as it “works at pace” on the wider implementation of the foreign influence registration scheme that was part of the National Security Act 2023. Those two bits of legislation never felt properly aligned – so that also feels pretty sensible.
In the debate that ensued, there was some lingering suspicion from the opposition that that all amounted to the government going soft on China – and regardless of the foreign funding clauses, there were some concerns from providers about the workability of the draft OfS guidance on the main duties re oppressive regimes and TNE. That will be one to watch.
Finally, we will also get a policy paper to set out the proposals in more detail, potentially alongside a decision on information provision for overseas funding.
What’s next
As we signalled back in March, the interaction with allegations and incidents of antisemitism appears to have been a big influence on the decisions – the press notice reminds readers that there were fears that the legislation would encourage providers to “overlook” the safety and wellbeing of minority groups, including Jewish students, and instead protect those who use hateful or degrading speech on campus:
Groups representing Jewish students also expressed concerns that sanctions could lead to providers overlooking the safety and well-being of minority groups.
Phillipson even referenced the faux pas from Michelle Donelan way back in May 2021 when, on the day the Bill was launched, she was unable to explain how the government’s proposals would prevent Holocaust deniers coming to campus.
Phillipson said that she could see “no good reason” why any university would invite a Holocaust denier onto campus to deny the overwhelming evidence that the Holocaust is an “appalling form of antisemitism”. Even when the last government had clarified the position on holocaust denial, it never confirmed that holocaust deniers could be banned – and the point about many external speaker edge cases is that they rarely fill the form in with “I’m going to say something unlawful”.
There’s still a way to go yet on these (and other) fine lines – in the ensuing debate, Phillipson said that she was worried that the regime that was due to launch would have “unduly prioritized” free speech which is hateful or degrading over the interests of those who feel harassed and intimidated – these issues, she said, can be “very finely balanced”. That may well see a push from the SOS that the two sets of guidance – on OfS’ new Harassment and Sexual Misconduct duties, and the drafts on this regime, are integrated more sensibly.
The ongoing questions surrounding the IHRA definition of antisemitism may also yet pop up again too – not least because of Arif Ahmed’s own apparent u-turn on it and the ensuing cases challenging its usage in disciplinary procedures. Questions of pro-Palestinian activism on camps and where that might stray into antisemitism were notably absent from OfS’ guidance drafts.
Overall, some in the debate will be furious at the government’s apparent watering down of the Act, others will be pleased that some of the arguably more unworkable aspects are being amended.
But probably the most important signal from Phillipson was a recognition that the area is complex and decisions often finely balanced – putting a degree of trust in universities (and their SUs) that they will also take it seriously.
Whatever else has happened over the past few years, there’s plenty of evidence that understanding has improved in the sector – it looks it has in Whitehall too. The question now is whether, next time an incident or issue comes along, it is handled by a university (or its SU) in a way that commands confidence.
